Orbán walks fine line in Brussels with Hungary's media law

"With the Islamic state offensive, the Ebola epidemic and Ukraine, Hungary is not on anyone's mind in Europe," mused one of our interlocutors during the Committee to Protect Journalists' fact-finding mission in Budapest in October. "Viktor Orbán has really nothing to fear from Brussels."

Hungarian liberals have learned the hard way that despite its loftily proclaimed "fundamental values" the European Union (EU) has not deterred their prime minister from imposing an increasingly illiberal state. Since the introduction of a controversial Constitution and highly contentious media law, the Fidesz-led government has skillfully made as minimal changes as possible in order to placate Brussels. Although the outgoing Dutch commissioner in charge of the digital agenda, Neelie Kroes, underlined in July that media freedom "is still very much under threat in Hungary," power politics has had the upper hand. Barely acknowledging that they were ever reprimanded, Hungarian officials brush away their national and foreign critics by accusing them of political partisanship, ignorance or bad faith.

The transgression of EU's democratic spirit is difficult to deny however, even by procedural pro-Fidesz constitutional lawyers. One of our official interlocutors in Budapest candidly admitted that the media authority, packed with Fidesz appointees, was indeed not totally proper. If the EU Charter of Fundamental Rights is more than a scrap of paper it clearly has an axe to grind with a government that uses and abuses its two thirds parliamentary majority (drawn from a 44.54 percent popular vote) to increase state control over the media, reward friendly voices, and punish or marginalize critical ones.

Real political will is needed however to trigger the mechanisms provided in the treaties when a member state allegedly violates the EU's most fundamental values. Deftly navigating the byzantine world of EU politics, Orbán has exploited the ambiguity of many member states which remain deeply suspicious of endowing EU officials in Brussels with more power to interfere in their internal affairs. He has drawn support from a majority in the European Parliament, not only thanks to its membership in the largest political group, the center-right European People's Party (EPP), but also thanks to the surge of populist and Brussels-bashing parties in the wake of the May 2014 European Parliament elections. He has also been protected by José Manuel Barroso who, in his final days as President of the European Commission in September, traveled to Budapest to sign a generous partnership agreement with Hungary endowed with €21 billion ($26 billion) of cohesion funds over a seven-year period... and to receive an honorary degree from Corvinus University of Budapest.

Ironically, the most stinging criticism has come from outside the EU. The U.S., which had forcefully defended Eastern Europe's EU accession after the fall of the Berlin Wall, has been increasingly vocal in its indictment of Orbán's government. Hungary had the dubious privilege of being mentioned by President Barack Obama in a September 23 speech at The Clinton Foundation denouncing receding democratic standards. "From Hungary to Egypt, endless regulations and overt intimidation increasingly target civil society," the U.S. president said. Orbán, once seen as a hero of anti-Communist dissent, was also sternly, although indirectly, upbraided by top U.S. diplomat Victoria Nuland. "Even if they reap the benefits of NATO and European Union membership, we find leaders in the region who seem to have forgotten the values on which these institutions are based," she said on October 2 at the Center for European Policy Analysis, a Washington think-tank. "How can you sleep at night while pushing illiberal democracy, whipping up nationalism, restricting free press or demonizing civil society?"

And yet, despite the EU's muddled response, Hungary is on the Brussels agenda. On October 20 a debate was held in Strasbourg on Hungary's media laws, at the initiative of the Socialists and with the participation of Liberal and Christian democratic MEPs. The next day, representatives of the Council of the European Union and European Commission presented their assessment of Hungary's conformity with EU fundamental values in a plenary session of the European Parliament. Although these officials used carefully crafted diplomatic language, the perception is widely shared that Hungary is a "bad pupil of Europe." Despite Orbán's electoral mandates, Hungary is seen by an increasing number of EU officials as a country that deviates from the EU's fundamental values and risks providing a bad example to other member states, a judgment that is regularly underlined by the international "elite media" that feed the Brussels conversation.

Despite the caution, complacency, or even complicity of many European leaders, the "Hungarian file" remains open. In September the European Court of Human Rights confirmed that Hungary's Church Act and its Fundamental Law violated freedom of religion. In mid-October, RTL Group, the largest Hungarian broadcaster and a subsidiary of German media giant Bertelsmann, filed a complaint with the European Commission over Hungary's advertising tax. The hearing of the Hungarian nominee to the European Commission, former Justice Minister and Foreign Affairs Minister Tibor Navracsics, was contentious. Even if he was confirmed by the European Parliament, he was deprived by incoming President of the Commission Jean-Claude Juncker of his mandate over citizenship issues.

In his hubris, the Hungarian leader has also made potentially serious mistakes. Although Orbán presents his Christian Democratic convictions as an alternative to "liberal democracy" he failed to support fellow Social Christian Party member Juncker in his bid for the top commission post. Although he received huge financial help from the European Commission he made deals with Russia on nuclear energy and stopped delivering Russian gas to Ukraine, contrary to the EU's injunction. He also expressed his sympathy for authoritarian governments and in particular for Russian President Vladimir Putin.

Hungary has also challenged one of the pillars of the EU--which is as much a community of interests as a community of values--namely market transparency and competition rules. This is seen through practices such as the biased allocation of state advertising to Fidesz-friendly media. In her July 2014 article, outgoing commissioner Kroes underlined the "opaque tendering practices" in the allocation of media licenses in Hungary and slammed the advertising tax law. "Taxation cannot be an instrument for discrimination and tax policy should not be a political weapon," Kroes warned.

Self-assured Hungarian officials and their disillusioned opponents might be right that Brussels will not dare to really confront Orbán. The prime minister continues to benefit from his membership in the European People's Party (EPP). His 12 MEPs provide a cushion to the 30-seat majority the EPP enjoys over its rival, the Progressive Alliance of Socialists and Democrats. Orbán's reference to "Christian Democratic democracy" as opposed to "liberal democracy" is clearly meant to guarantee the continued support of the EPP, which controls the most important positions in the Brussels-based institutions. He can also rely on parties further to the right which appreciate his traditionalist positions on faith and family, and share his nationalism and Euro-skepticism.

However Hungary was one of the first issues on the European Parliament's agenda when it was inaugurating a new five-year term. Even if it was pushed by the Socialists, the Liberals, the Greens, and the European left, it cannot be attributed only to partisanship: there is real concern about Orbán's political and diplomatic drifts. The second most powerful man in the commission, former Dutch foreign minister Frans Timmermans, a social democrat, has been given the oversight on the Rule of Law and the Charter of Fundamental Rights, and is known as a strong human rights advocate. In his confirmation hearing he was cautious regarding Hungary but, after stating his preference for "dialogue first," he said that he "would not shrink from starting with infringement procedures all the way down to Article 7," the so-called nuclear option which suspends a EU member state's voting rights.

Some cracks are appearing where they matter most: inside the EPP. In the October 20 Strasbourg debate on media freedom in Hungary, Luxembourg Social Christian MEP Frank Engel declared that "Hungary's government was on a dangerous path," and warned that "once a country joins a club, it must observe that club's internal regulations."

"Christian Democracy," he added during the October 21 hearing, "is liberal democracy and only a liberal Christian Democracy is compatible with European democracy."

Update: The ninth paragraph has been updated to reflect that comments on the distribution of state advertising were not made by outgoing commisioner Neelie Kroes.

CPJ EU Correspondent Jean-Paul Marthoz is a Belgian journalist and longtime press freedom and human rights activist. He teaches international journalism at the Université catholique de Louvain and is a columnist for the Belgian daily Le Soir.

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